The fact that you receive a salary rather than hourly pay doesn’t automatically disqualify you from getting overtime. However, certain employees are disqualified based on their job description and it just so happens that many of these jobs (skilled, professional positions) tend to be salaried positions. The point is that you need to look at what you do, not how you’re paid, when determining whether you’re owed overtime. If it’s unclear, check with an employment attorney. They know the law (which is sort of vague on this subject) and more importantly, if they have a lot of experience, they will know how to apply the law to many different types of employees.
The basic rule of overtime pay is that employees who work more than 40 hours in a week must be paid 1.5 times their regular pay for the hours over 40. However, there are several laws on the issue, and several exceptions to this general rule.
First of all, some employers are exempt, meaning that they don’t have to pay anyone overtime. This category includes employers who have fewer than three employees or less than $500,000 in annual sales.
Second, some employees are exempt. The law says that employees in professional, administrative and executive jobs are not entitled to overtime pay. It’s a somewhat vague category. Obviously, the CEO of a company, as an executive, would not be entitled to overtime. That part makes sense. The term “professional,” however, is fairly broad. For example, teachers, engineers, lawyers, secretaries, accountants, truck drivers and those in sales are usually exempt. You might need to talk to a lawyer to figure out if you are in an exempt category.
So what can you do? You can take your employer to court to get what you’re owed. In fact, you can usually attempt to collect up to three years of past-due overtime pay. In addition, the court can award double the amount in some cases in order to penalize an employer. If you are unsure whether you’re owed overtime, ask an attorney. A consultation with a lawyer does not mean you have to take the next step and file lawsuit. If you know you are owed overtime, you can pursue a case even if you don’t have records of how much you worked. Employers are required by law to keep track and keep records. Also, immigration status does not affect your right to overtime pay.
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Written by Michael Helfand